Australian Separation and Divorce Articles

Spousal Maintenance: What is it?

Rebecca Barron – Accredited Family Law Specialist – Collaborative Lawyer | 14 February 2016

A consideration of whether a party is eligible
to receive Spousal Maintenance has 2 elements…

Spousal Maintenance is a concept that family lawyers often talk about, and often don’t explain very well. I’ll call it “maintenance” throughout this article, as it applies to married couples and de facto couples (including same sex relationships).

The Family Law Act (Cth) 1975 (the “Act”) provides that a party to a relationship is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support themselves adequately whether by reason of having the care and control or a child of the relationship who is under 18 years of age; by reason of age or physical or mental incapacity for appropriate gainful employment; or any other adequate reason having regard to a number of factors set out in a section of the Act.

So…..what does that mean?

A consideration of whether a party is liable to pay (or eligible to receive) Spousal Maintenance has 2 elements:

Does the receiving party have a need for financial assistance?
This refers back to the words of the Act “if that other party is unable to support themselves adequately”. That is, is the receiving party’s income less than their expenses? Are they unable to return to the workforce to improve their financial position because they are caring for the children? Has it been some considerable time since they were last in the workforce, and is some re-training necessary? These are only a few of the questions looked at when considering if someone has a “financial need”.
Does the paying party have a capacity to provide financial assistance to the other?
This refers back to the words of the Act “is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so”. Does the party liable to pay maintenance have a surplus of income each week? Does the paying party have funds in a bank account that can be accessed to pay maintenance? Again, these are only a few of the questions looked at when considering if someone has the “capacity to pay”.

Maintenance is often not considered properly in family law matters, and it is important to receive advice from a lawyer who specialises in family law so they can properly assess whether maintenance is something relevant to your family law matter (i.e. whether you are eligible to receive, or at risk of paying).

Possible impacts upon Property Settlement

It is also important to understand how maintenance may relate to or impact upon your property settlement. Strictly speaking, maintenance is a separate claim from a property claim, however family lawyers may often talk about them together, or talk about maintenance as though it’s part of a property settlement (and it may be depending on the structure of the settlement).

Time limitations

As with all matters, there are relevant time limitations to be aware of. Parties who were married and have now divorced must commence proceedings for a maintenance claim within 12 months of their divorce, otherwise they may be prevented from doing so. Parties who were in a de facto relationship only have 2 years from separation to bring their claim, otherwise they may be prevented from doing so. I strongly recommend that anyone who is concerned they are nearing a limitation date seek advice as quickly as possible.

Rebecca Barron is an Accredited Specialist in Family Law, and also a Collaborative Lawyer for Pullos Lawyers. Rebecca specialises in family law, dealing with property and parenting matters. She also has significant experience in the area of Domestic Violence. Rebecca is based on the Gold Coast, Queensland however acts for clients nationwide and internationally.